[gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC

Wed May 2 15:16:44 UTC 2018

I responded to your original email but do not see any further comments from
you.

Paul

From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Georges
Nahitchevansky <ghn at kilpatricktownsend.com>
Date:  Wednesday, May 2, 2018 at 4:02 PM
To:  Greg Shatan <gregshatanipc at gmail.com>, Julie Hedlund
<julie.hedlund at icann.org>
Cc:  "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg at icann.org>
Subject:  Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
call on 25 April 2018 at 1700 UTC

> I am recirculating what I previously sent.  It has the questions just below my
> text.  Again I urge these loaded questions be removed for the reasons I stated
> and that others like Greg and Scott have made.
> 
> From: ghn at kilpatricktownsend.com
> Sent: May 2, 2018 8:29 AM
> To: gregshatanipc at gmail.com; julie.hedlund at icann.org
> Cc: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
> call on 25 April 2018 at 1700 UTC
> 
> Dear All:
>  
> Below are the questions being referred to. I likewise object to these
> questions which have an underlying assumption that Panelists are somehow
> biased and don¹t screen conflicts properly.  It also assumes that the
> panelists are all attorneys at law firms and the law firms do not have proper
> screening mechanisms for conflicts.  Simply put, most of these questions are
> loaded questions that are meant to further a particular agenda.  If we are
> going to go down the route of these type of loaded questions, should we also
> be asking about attorneys, for example,  who represent parties that registered
> names with bogus contact information whether they conducted a thorough check
> so that they can certify that they truthfully identified the party they are
> representing and how they conducted that check (e.g., what mechanisms are in
> place and all steps taken).  After all the ethical rules make clear that
> attorneys are bound by requirements that attorneys be truthful.  In that vein,
> should we also ask whether the attorneys representing parties have been
> truthful and checked the facts that they are stating in their papers  and
> what steps they take to certify and insure this.  I can think of several
> examples I personally know of where an attorney simply lied in the
> submissions.  Should this now be an entire line of inquiry.  Should we ask
> whether Rule 11 type sanctions be available in URS cases where an attorney
> representing a party is found to represent a party with fake contact
> information or has lied in the papers.  I can think of many more loaded lines
> of inquiries if that what some want to do, but ultimately I don¹t think these
> are going to be productive in moving the ball forward.
>  
> In light of the questions that were suggested on the provider side of things,
> I think the only issue to raise is whether Panelists are impartial per the
> requirements of the rules and what providers do to make sure that is the case
>  and nothing more, .  These questions should not be here and should be
> deleted in their entirety
>  
>  
>  
>  
> 4.    Do you serve as a URS panelist?
>  
> A. Yes
> B. No
>  
> 5. If yes, do you undertake a law firm-wide conflicts check to verify that
> neither you nor your law firm has any actual or potentially adverse conflict
> of interest to the complainant and/or respondent?
>  
> A. Yes
> B. No
>  
> If yes, please briefly describe the methods used to verify the absence of
> conflicts:___________________________________________________¹
>  
> If yes, do you retain records of your search?
>  
> A. Yes
> B. No
>  
> 6. Have you ever communicated with a third party regarding an ongoing URS
> dispute in which you were a panelist?
>  
> A. Yes
> B. No
>  
> If yes, please briefly explain the nature of such
> communications:_________________________
>  
>  
>  
>  
>  
> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Greg
> Shatan
> Sent: Wednesday, May 2, 2018 1:05 AM
> To: Julie Hedlund <julie.hedlund at icann.org>
> Cc: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
> call on 25 April 2018 at 1700 UTC
>  
> 
> All,
> 
>  
> 
> I have significant objections to the questions to Examiners that were tacked
> on to the end of the Practitioners questionnaire at the 11th hour.  Apologies
> for not focusing on this before now.  I don't believe these have really been
> properly reviewed or discussed.
> 
>  
> 
> I believe these questions are inappropriate in a poll of practitioners, as
> these are questions directed to "panelists."   (The proper term is
> Examiner....) It feels like a "bait and switch" tactic.  If we are going to
> survey Examiners, let's survey Examiners -- not ambush practitioners.  On that
> basis alone, we should eliminate these questions.
> 
>  
> 
> I am also troubled by the questions themselves.  Singling out these questions,
> out of all that we might ask Examiners, seems vaguely accusatory.
> 
>  
> 
> The basis for these questions is questionable.  I've reviewed the URS
> Procedures and Rules, and none of these questions comes out of a Procedure or
> Rule.  The Examiners are supposed to declare conflicts of interest, but there
> is no instruction on how to implement that.  As such, there is no requirement
> that an Examiner undertake any type of conflicts check much less something as
> specific as "a law firm-wide conflicts check to verify that neither you nor
> your law firm has any actual or potentially adverse conflict of interest to
> the complainant and/or respondent."  Asking the question implies that this is
> an imperative when it is not.
> 
>  
> 
> On top of that, this verbiage does not accurately describe a conflict check.
> What is a "potentially adverse conflict of interest"? Why is it only asking
> about adverse conflicts?  I note that the Forum does have a Supplementary Rule
> that "A Examiner will be disqualified if circumstances exist that create a
> conflict of interest or cause the Examiner to be unfair and biased, including
> but not limited to ...  The Examiner has served as an attorney to any party or
> the Examiner has been associated with an attorney who has represented a party
> during that association."  This does not ask the Examiner to run a conflict
> check, but notably, the issue it raises is the exact opposite of the issue
> implied in these proposed questions -- the Forum is highlighting representing
> a party, not being adverse (much less "potentially adverse) to a party.
> 
>  
> 
> Now, I'm not saying it's a bad idea for an Examiner to run a (properly
> defined) conflict check, but the very fact that we are debating Examiner
> actions and requirements in a practitioners poll should tell us we're in the
> wrong place.
> 
>  
> 
> For that reason, I will not discuss the problems in the follow-up questions on
> conflict checks.
> 
>  
> 
> The final question is even worse. ("Have you ever communicated with a third
> party regarding an ongoing URS dispute in which you were a panelist?')  As far
> as I know, this is not prohibited behavior, especially not this broadly
> described.  It seems designed to make people feel like they might have done
> something wrong.  (If this is expressly prohibited by the Rules or Procedures,
> then perhaps we could fashion a question out of that Rule/Procedure if we were
> putting together a poll for Examiners.)  Is it improper to "communicate" with
> your spouse about a URS case?  With one of your law partners? With a fellow
> Examiner?
> 
>  
> 
> Long story short, these questions should be deleted.
> 
>  
> 
> Greg
>  
> 
>  
> 
> On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund at icann.org>
> wrote:
>> 
>> Dear RPM PDP WG members,
>>  
>> Per the WG Co-Chairs, here is the proposed agenda for the Working Group call
>> Wednesday, 02 May 2018, scheduled for 1700 UTC.  Times are proposed as
>> estimates and may be adjusted.
>>  
>> Proposed Agenda:
>> 1. Roll call and updates to Statements of Interest (1 minute)
>> 2. Final Status of Questions for Practitioners and Providers (9 minutes)
>> 3. Report from the Documents Sub Team (20 minutes)
>> 4. Discussion on URS Phase II proposal (59 minutes)  See John McElwaine¹s
>> original email at:
>> http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google
>> Sheet with the proposal as tab one, and the responses as tab two at:
>> https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbuG
>> pQnOgI/edit?usp=sharing
>> 5. Notice of agenda for 09 May meeting (1 minute)
>>   
>> Best regards,
>> Mary, Julie, Ariel and Berry
>>  
>>  
>> 
>> _______________________________________________
>> gnso-rpm-wg mailing list
>> gnso-rpm-wg at icann.org
>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>  
> 
> 
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